Reply Brief — Hwang Geum Joo v. Japan

Supreme ao |

FILED

(y) JAN 7 ~ 2004

No. 03-741 | OFFICE OFTHE CLERK

IN THE

Supreme Court of the United States

Hwang Geum Joo, Yuan Zhulin, Lola Tomasa Salinog, Liu

Huang A-tau, Kim Boon-sun, Kim Sang Hee, Kim Soon-Duk,

Yi Yong Nyo, Kim Bok-Dong, Lu Xiuzhen, Guo Yaying, Zhu

Qiaomei, Prescila Bartonico, Narcisa Claveria, Maxima Regala

de la Cruz, on behalf of themselves and all others similarly

situated,

Petitioners,

Government of Japan,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

Michael D. Hausfeld (Counsel of Record)

Richard A. Koffman

Agnieszka M. Fryszman

COHEN MILSTEIN HAUSFELD & TOLL, P.L.L.C.

1100 New York Avenue, N.W., Suite 500

Washington, D.C. 20005

(202) 408-4600

Counsel for Petitioners (additional counsel on inside cover)

TSP PE SIE IE SP DOA SE ODOUR RM BE AR TIEE TNE EL tt

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

Additional Counsel for Appellants:

Barry A. Fisher

David Grosz

FLEISHMAN & FISHER

1888 Century Park East

Suite 1750

Los Angeles, CA 90067

Bill Lann Lee

Morris A. Ratner

Scott Nealey

LIEFF CABRASER HEIMANN & BERNSTEIN

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

David R. Markham

BLUMENTHAL OSTROFF & MARKHAM

2255 Calle Clara

La Jolla, CA 92037

Kenneth T. Haan

HAAN & Ryu, L.L.P.

3699 Wilshire Boulevard

— Suite 860

Los Angeles, CA 90010

Keith K. Kim

LAW OFFICES OF KEITH KIM

3699 Wilshire Boulevard

Suite 635

Los Angeles, CA 90010

Johnnie L. Cochran, Jr.

LAW OFFICES OF JOHNNIE L. COCHRAN, JR.

Woolworth Building

233 Broadway

New York, NY 10279

TABLE OF CONTENTS

TAee Ue AUTHORITIES ... 0. occ ences ll -1V

8 SEES SS a aa aa er l

I. RESPONDENT CANNOT PERSUASIVELY

Pie LAWS ALIMANN ..... 1.00 ccc encass 2

II. RESPONDENT MISCHARACTERIZES, AND

FAILS TO ADDRESS, THE SECOND QUESTION

PRESENTED BY PETITIONERS ............. 6

Ill. THE COURT SHOULD DECLINE

RESPONDENT?’S INVITATION TO

REACH ISSUES NOT ADDRESSED BY THE

Gok og Ft) b. S rrar 8

ng GY ww sea eda wnt ow ea ks aed 9

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Abrams v. Société Nationale des Chemins de Fer Francais,

pote oe Bye ee oe ae re rae ore rre 7,8

Altmann vy. Republic of Austria,

317 F.3d 954 (9th Cir. 2002), cert. granted,

eo ek ek en re passim

Bernstein v. N.V. Nederlandsche-Amerikaansche,

PL gw By Te oe a, | 4

Flores v. Southern Peru Copper Corp.,

POD FO PORCH G BOOS sc kc ke cee nes nebachakens x7

Flota Maritima Browning de Cuba, S.A. v. Motor Vessel

Ciudad de la Habana,

Rog a | rr ee ree 7

Hughes Aircraft Co. v. United States,

ge ee ee ee rrr reer 9

Johnson v. Eisentrager,

Bg ee rr Pree 7

Pierce County v. Guillen,

DOE Gis ERP RROD obs in ek hdc ese nsdeasisvniusrs 9

Princz v. Federal Republic of Germany,

Be Fo CURL, OO. TOD ogc kc csr niesveens 7

iil

Republic of Mexico v. Hoffman,

Se Ek £66 he Li aa ae ES cae ees 7

Ex parte Republic of Peru,

See a ee 5b ce a ee 7

The Schooner Exchange v. M 'Faddon,

CS Ue Ss oa soe oe eh re eee ee 6, 7

United States v. Yousef,

327 F.3d 56 (2d Cir.), cert. denied,

CRO GS Fey ee 6s nee hana dies eee eas a3

Verlinden B.V. v. Central Bank of Nigeria,

GOEL Ges 5 haa kaa casn dwatwne es cannes Fi

FEDERAL STATUTES

Foreign Sovereign Immunities Act of 1976 (“FSIA”),

p EER Some SL) er errr fre re passim

Victims of Trafficking and Violence Protection Act of 2000,

pret S72 wae yD re were en gre hot se 9

White Slave Traffic (Mann) Act,

Pub. L. No. 277, § 395, 36 Stat. $25(1910) ............. 9

ADDITIONAL AUTHORITIES

1951 Treaty of Peace with Japan ................. ; ee

8 Dep't State Bull. 21 (Jan. 9, 1943) on cece en 5

IV

5 Dep’t State Bull. 476 (Dec. 13, 1941) ............... 5

5 Dep't State Bull. 470 (Dec. 13, 1941) ..........005.. 5

Sept State Bull. 123 (Feo. 6, 1962) oi ec ccceucas 5

6 Dep’t State Bull. 169 (Feb. 21, 1942) ................ 5

8 Dep’t State Bull. 49-55 (Jan. 16, 1943) .............. 5

8 Dep’t State Bull. 337 (Apr. 24, 1943)................ 5

10 Dep’t State Bull. 115 (Jan. 29, 1944) ............... 5

10 Dep’t State Bull. 277 (Mar. 25, 1944) .............. 5

10 Dep’t State Bull. 340 (Apr. 15, 1944) ............... 5

10 Dep’t State Bull. 342 (Apr. 15, 1944) ............... 5

International Convention for the Suppression of the White

mee Tree, May 4, T9IG oo ae ks ck NG ie an ea eeses 9

hen Reparations Agreement of 1946 ................. 3

Protocol to Prevent, Suppress, and Punish Trafficking in

Persons, Especially Women and Children, Supplementing the

United Nations Convention Against Transnational Organized

Crime, G.A. Res. 55/25 Annex II, U.N. GAOR, 55th Sess.,

augip. No. 49, at GO, at Art. 3 (2001) .. 0. ccc sceicaes 9

INTRODUCTION

As demonstrated in the Petition for Certiorari, the

decision below conflicts with this Court’s retroactivity

jurisprudence. See Petition at 4-12. Respondent’s attempt to

explain away this conflict does not require any reply beyond

the discussion set forth in the Petition.

Respondent also seeks to distinguish this case from

the Ninth Circuit’s contrary decision in Altmann v. Republic

of Austria, 317 F.3d 954 (9th Cir. 2002), cert. granted, 124

S. Ct. 46 (Sept. 30, 2003). As demonstrated below, none of

the distinctions proffered by Respondent is valid, and the

Court should grant the Petition to reconcile the conflict

between the Ninth and District of Columbia Circuits

regarding the retroactivity of the exceptions to sovereign

immunity set forth in section 1605(a) of the FSIA.

Respondent fails to address the second question

presented in the Petition, choosing instead to answer an

entirely different question. Respondent’s failure to address

the second question presented in the Petition should be

deemed an acknowledgment that this important and

unresolved question of law warrants the Court’s review.

Finally, Respondent urges the Court to affirm the

judgment below on various bases not addressed by the court

of appeals. Respondent, however, suggests no reason why

the Court should abandon its usual practice of declining to

reach questions not addressed by the court below.

Respondent’s invitation to address these issues prior to their

resolution by the court of appeals should be rejected.

2

I. RESPONDENT CANNOT PERSUASIVELY

DISTINGUISH ALTMANN.

In Altmann, the Ninth Circuit held that “application of

the FSIA to the pre-1952 actions of the Republic of Austria is

not impermissibly retroactive.” 317 F.3d at 967.' Here,

conversely, the court below held that “the commercial

activity exception to the FSIA does not apply retroactively to

events, such as those alleged in this case, occurring before

May 19, 1952.” App. 16a. These two decisions plainly

conflict, unless one excepts the rather bizarre proposition that

the FSIA’s expropriation exception to sovereign immunity,

set forth at 28 U.S.C. § 1605(a)(3), applies retroactively,

while the FSIA’s commercial activity exception to sovereign

immunity, set forth at 28 U.S.C. § 1605(a)(2), does not.

Respondent offers three purported distinctions of Altmann,

each of which is unavailing.

l. Respondent first purports to distinguish

Altmann based on the 1951 Treaty with Japan. See Brief in

Opposition at 16. This purported distinction fails for at least

three reasons. First, as Respondent concedes, the United

States entered into a series of post-World War II treaties with

Germany and Austria that, like the Treaty with Japan,

provided for reparation claims of signatory nations to be

'This Court granted certiorari in Altmann on the

question, “Does the expropriation exception of the [FSIA]

afford jurisdiction over claims against foreign states based on

conduct that occurred before the United States adopted the

restrictive theory of sovereign immunity in 1952?”

3

resolved through government-to-government negotiations.’

See Brief in Opposition at 17. There is thus no relevant

distinction between the Treaty with Japan and the treaties

with Germany and Austria.

Second, like all treaties, the 1951 Treaty with Japan

can extinguish only the claims of citizens of signatory

nations. See Flores v. S. Peru Copper Corp., 343 F.3d 140,

162 (2d Cir. 2003); United States v. Yousef, 327 F.3d 56, 95

n.28 (2d Cir.), cert. denied, 124 S.Ct. 353, 492 (2003).

Neither Korea nor China was a party to that Treaty, and most

of the Petitioners are citizens of these countries.

Third, even if the 1951 Treaty could somehow affect

Japan’s settled expectations regarding claims by citizens of

non-signatory nations — a dubious proposition at best — it

? Both parties agree that the court below’s conjecture

that “there was no similar treaty with Germany or Austria,”

App. 11a, was mistaken. Respondent’s contention that none of

the treaties with Germany and Austria waived the claims of the

signatories and their nationals is similarly mistaken. For

example, Article 2A of the Paris Reparations Agreement of

1946, regarding reparations by the former Nazi powers,

contains such a waiver: “The Signatory Governments agree

among themselves that their respective shares of reparation, as

determined by the present Agreement, shall be regarded by each

of them as covering all its claims and those of its nationals . . .

”’ In its Brief for Amicus Curiae Japan in Support of

Petitioners, at 25, n.5, Republic of Austria v. Altmann, 03-13

(Nov. 2003), Respondent argues that the 1951 treaty with Japan

and the treaties with Germany and Austria operate in a similar

fashion, contradicting its argument here.

4

could conceivably have affected such expectations only from

September 8, 1951, when it was signed, until May 19, 1952,

when the United States adopted the restrictive theory of

sovereign immunity later codified in the FSIA. Japan’s

expectations regarding immunity from 1931 to 1945, when it

abducted young women and charged Japanese soldiers money

for their violation, cannot possibly have been colored by a

Treaty signed years later.

r Respondent next purports to distinguish

Altmann based on the fact that Altmann involved the

expropriation exception to sovereign immunity, while this

case involves the commercial activity exception. Brief in

Opposition at 18. The FSIA lists seven “[g]eneral exceptions

to the jurisdictional immunity of a foreign state.” 28 U.S.C. §

1605(a)(1)-(7). Petitioner can think of no reason why some,

but not all, of these exceptions to sovereign immunity should

apply retroactively, and Respondent offers none.

Respondent cites the Ninth Circuit’s discussion of the

“Bernstein letter” in support of this purported distinction.

Brief in Opposition at 18-19. However, as Respondent

acknowledges, the Bernstein letter is simply irrelevant, as it

“concerned the act of state doctrine, not the doctrine of

sovereign immunity.” /d. at 19 n.8 (citations omitted).

Moreover, the Bernstein letter echoed a series of

declarations, referred to in the Bernstein letter itself, that were

directed at a// enemy nations, including Japan. For example,

‘Portions of this letter, but not the whole, are reprinted

in Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F.2d

375 (2d Cir. 1954).

5

the “Declaration Regarding Forced Transfers of Property in

Enemy Controlled Territory,” 8 Dep’t State Bull. 21 (Jan. 9,

1943), was ‘‘a formal warning” to all enemy nations, including

Japan, that the Allied countries

intend to do their utmost to defeat the methods

of dispossession practiced by the governments

with which they are at war against the countries

and peoples who have been so wantonly

despoiled . . . [and] reserve all their rights to

declare invalid any transfers of, or dealings

with, property, rights and interests of any

description whatsoever which are, or have

been, situated in the territories which have

come under the occupation or control, direct or

indirect of the governments with which they

are at war.

Id. at 21-22. The fact that this policy, targeted at all enemy

nations, was cited in a letter provided to the plaintiffs in a case

involving Germany does not limit the application of the

underlying policy to Germany.*

"The State Department issued additional wamings

specifically addressing Japan’s conduct, condemning Japan’s

treatment of noncombatants, warning that the United States

would hold perpetrators personally and officially responsible,

and specifically condemning rape and pandering. See, e.g., 5

Dep’t State Bull. 476 (Dec. 13, 1941); 10 Dep’t State Bull. 277

(Mar. 25, 1944): 5 Dep’t State Bull. 470 (Dec. 13, 1941); 8

Dep’t State Bull. 49-55 (Jan. 16, 1943); 6 Dep’t State Bull. 123

(Feb. 6, 1942); 6 Dep’t State Bull. 169 (Feb. 21, 1942); 8 Dep’t

State Bull. 337 (Apr. 24, 1943); 10 Dep’t State Bull. 115 (Jan.

a Finally, Respondent notes that Austria adopted

the restrictive theory of sovereign immunity prior to 1952.

Brief in Opposition at 19. As Respondent concedes, however,

“foreign law .. . has never been relevant in determining

whether a foreign sovereign is entitled to immunity in this

country.” /d. (emphasis in original). Respondent thus relies,

as it did with the Bernstein letter (which Respondent concedes

is irrelevant to the issue of sovereign immunity), on a

purported distinction even Respondent apparently finds

unconvincing.

In order to prevent inconsistency between the

application of the FSIA here and that in Altmann, the Court

should either grant the Petition or hold it pending the Court’s

decision in A/tmann.

Il. RESPONDENT MISCHARACTERIZES, AND

FAILS TO ADDRESS, THE SECOND

QUESTION PRESENTED BY PETITIONERS.

The second question presented in the Petition is, “Even

absent the FSIA, are enemy nations entitled to sovereign

immunity from suits based on their wartime acts, particularly

when those acts occur on United States soil?”

Since the doctrine of sovereign immunity was first

announced in The Schooner Exchange v. M’Faddon, 11 U.S.

116 (1812), the Court has repeatedly referred to the immunity

enjoyed by “friendly” foreign sovereigns in American courts.

29, 1944); 10 Dep’t State Bull. 340 (Apr. 15, 1944); 10 Dep’t

State Bull. 342 (Apr. 15, 1944).

7

See The Schooner Exch., 11 U.S. at 145-46; see also

Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486

(1983); Republic of Mexico v. Hoffman, 324 U.S. 30, 34-36

(1945); Ex parte Republic of Peru, 318 U.S. 578, 587-89

(1943). It is therefore questionable whether, prior to passage

of the FSIA, enemy nations had any reasonable expectation of

immunity from suit.’ Indeed, the Second Circuit recently

expressed doubt that the doctrine of sovereign immunity

should apply to suits based on wartime conduct by enemy

nations. See Abrams v. Société Nationale des Chemins de Fer

Francais, 332 F.3d 173, 187 (2d Cir. 2003); see also Princz v.

Fed. Republic of Germany, 26 F.3d 1166, 1179 (D.C. Cir.

1994) (Wald, J., dissenting); Flota Maritima Browning de

Cuba, S.A. v. Motor Vessel Ciudad de la Habana, 335 F.2d

619, 623 n.10 (4th Cir. 1964) (noting authority for

inapplicability of immunity doctrine to unfriendly powers).

Cf. Johnson v. Eisentrager, 399 U.S. 763, 769 (1950) (law

recognizes distinction between friendly and enemy aliens).

Rather than address this issue, Respondent constructs a

straw man and knocks him down with a flourish. Respondent

conspicuously ignores the Petition’s discussion of whether

enemy nations should be afforded the same immunity as

friendly nations and somehow surmises that Petitioner actually

seeks to convince the Court to adopt a jus cogens exception to

sovereign immunity. See Brief in Opposition at 20-21.

Respondent’s failure to address the real question presented is

telling.

‘After all, “foreign sovereign immunity is a matter of

grace and comity on the part of the United States, and not a

restriction imposed by the Constitution.” Verlinden, 461 U.S.

at 486.

8

As the Second Circuit reasoned in Abrams, “[T]he

State Department’s treatment of ordinary litigation with

friendly foreign states in times of peace does not necessarily

indicate the position the Department’ would have taken on

claims closely related to war-time crimes of an enemy.”

Abrams, 332 F.3d at 187. Nor does anything in this Court’s

jurisprudence indicate that prior to passage of the FSIA,

enemy nations would have received the same immunity from

suit as friendly nations. Indeed, the Court’s frequent reference

to the immunity from suit traditionally afforded “friendly”

nations implies to the contrary.

To the extent the Court entertains any doubt that the

FSIA applies to cases arising from pre-1952 conduct, the

Court should grant the Petition to address the important and

unresolved question whether, absent the FSIA, enemy nations

are entitled to sovereign immunity. In the alternative, because

the Court’s decision in Altmann will likely implicate this

question, the Court should hold the Petition pending its

decision in A/tmann.

Il, THE COURT SHOULD DECLINE

RESPONDENT’S INVITATION TO REACH

ISSUES NOT ADDRESSED BY THE COURT OF

APPEALS.

Respondent alleges various alternative grounds on

which the decision below could purportedly be affirmed.°®

° The D.C. Circuit did not hold, as Respondent appears

to imply, that outside the sovereign immunity context the San

Francisco Treaty “provides an independent basis for dismissal.”

Brief in Opposition at 18. Because treaties can extinguish only

9

Brief in Opposition at 20. For reasons briefed at length by

Petitioners below, each of these grounds is wholly without

merit. The Court “ordinarily do[es] not decide in the first

instance issues not resolved below,” Pierce County v. Guillen,

537 U.S. 129, 148 n.10 (2003), and Respondent suggests no

reason why an exception should be made here. If the Court

agrees with Petitioners that the court of appeals erroneously

applied the doctrine of sovereign immunity to bar Petitioners’

claims, the courts below can, on remand, address

Respondent’s other asserted bases for dismissal.

Moreover, Respondent repeatedly confuses the FSIA’s

grant of jurisdiction with the substantive law of liability. The

FSIA, unlike False Claims Act at issue in Hughes Aircraft Co.

v. United States, 520 U.S. 939 (1997), relied upon by

Respondent, does not provide a substantive cause of action.

Trafficking in women was illegal, and a violation of

international law, at the time Japan established “comfort

stations” all over Asia and on U.S. soil, and it remains illegal

today. See, e.g. International Convention for the Suppression

of the White Slave Traffic, May 4, 1910; Protocol to Prevent,

Suppress, and Punish Trafficking in Persons, Especially

Women and Children, Supplementing the United Nations

Convention Against Transnational Organized Crime, G.A.

Res. 55/25 Annex II, U.N. GAOR, 55th Sess., Supp. No. 49,

at 60, at Art. 3 (2001); White Slave Traffic (Mann) Act, Pub.

L. No. 277, § 395, 36 Stat. 825 (1910); Victims of Trafficking

and Violence Protection Act of 2000, 22 U.S.C. § 7101.

the claims of signatory nations and their citizens, the Treaty

cannot, and does not, bar plaintiffs’ claims. See Flores, 343

F.3d at 162; Yousef, 327 F.3d at 95 n.28.

10

CONCLUSION

For the foregoing reasons, and those presented in the

Petition, the Court should grant certiorari on each of the two

questions presented by the Petition. In the alternative, the

Court should hold the Petition pending decision of the closely

related question on which the Court granted certiorari in

Altmann.

Respectfully submitted,

Michel QD. HasndeOdl/

Michael D. Hausfeld

Counsel of Record

Richard A. Koffman

Agnieszka M. Fryszman

COHEN MILSTEIN HAUSFELD &

TOLL, P.L.L.C.

1100 New York Avenue, N.W.

Suite 500 West

Washington, D.C. 20005

(202) 408 - 4600

Barry A. Fisher

David Grosz

FLEISHMAN & FISHER

1888 Century Park East

Suite 1750

Los Angeles, CA 90067

LR ee Rt, TE PO NF. <p halt te a ENE ol

Bill Lann Lee

Morris A. Ratner

Scott Nealey

LIEFF CABRASER HEIMANN &

BERNSTEIN

275 Battery Street, 30" floor

San Francisco, CA 94111

David R. Markham

BLUMENTHAL OSTROFF &

MARKHAM

2255 Calle Clara

La Jolla, CA 92037

Kenneth T. Haan

HAAN & Ryu, L.L.P.

3699 Wilshire Blvd., Suite 860

Los Angeles, CA 90010

Keith K. Kim

LAW OFFICES OF KEITH KIM

3699 Wilshire Blvd., Suite 635

Los Angeles, CA 90010

Johnnie L. Cochran, Jr.

LAW OFFICES OF JOHNNIE L.

COCHRAN, JR.

Woolworth Building

233 Broadway

New York, NY 10279